Repeat claims for LCW/LCWRA in Universal Credit.

The request was successful.

Dear Department for Work and Pensions,

Under ESA regulations when a repeat claim is made where a claimant had previously been found fit for work and could not show a new or significantly deteriorated condition, the claimant could not be 'treated as' having Limited Capability for Work and no ESA would be payable until a Work Capability Assessment was carried out and a decision made.

The Employment and Support Allowance Regulations 2008, as revised, Regulation 30.(2)(b)(ii) would apply.

A claimant in such circumstances, who wanted to claim benefit, would have to claim JSA until the Work Capability Assessment was carried out and a decision made.
If an award of ESA was made then any group component and premium payable would be back-paid to the end of the 13th week of the repeat claim.

Under Universal Credit the situation is different as a claimant in such circumstances would continue to receive UC at the standard rate whilst awaiting a Work Capability Assessment and decision.

Accordingly in The Universal Credit Regulations 2013, as revised, there is no equivalent to ESA regulation 30.(2)(b)(ii).

The lack of such a regulation in the UC legislation means that a claimant making a repeat request for a Limited Capability assessment in such circumstances should be treated the same as a first time requester for Limited Capability and a new WCA referral made despite the previous Fit for Work decision.

In particular it would mean that if LCWRA is awarded then it should be backdated to the start of the 3rd month following the month in which medical evidence was first provided.

It would also mean that there is no legal deterrent to UC claimants making multiple Limited Capability requests with the same condition, even following a previous Fit for Work determination.

Requests -

1) Please would you supply, or provide clear links to, any guidance for staff or decision makers regarding the situation when a UC claimant who has previously been found Fit for Work following a WCA then makes a new, repeat, request for assessment for Limited Capability in UC.

In particular any guidance on deterring claimants from making multiple repeat requests, and any guidance on their status if allowed to make a repeat request especially in relation to the waiting 3 month waiting period and possible back-payment.

If referring to the ADM guidance then please provide the Volume, Chapter, and Paragraph number(s) for the particular guidance that applies.

2) Please provide copies of, or clear links to, any Universal Credit regulation that states that a claimant in such a situation should not be classed as having Limited Capability for Work for the period preceding the WCA decision, and should not receive any back-payment for the period preceding the WCA decision if longer than the 3 months waiting period.
Indicating the number and any sub-clause of the particular regulation that would apply would be an acceptable reply.

If no such guidance, or no such regulation, exists then please state so.

Yours faithfully,

S. Gwilliam

DWP freedom-of-information-requests, Department for Work and Pensions

This is an automated confirmation that your request for information has
been accepted by the DWP FoI mailbox.
 
By the next working day your request will be forwarded to the relevant
information owner within the Department who will respond to you direct. 
 
If your email is a Freedom of Information request you can normally
expect a response within 20 working days.
 
Email FOI responses will be issued from [1][email address]
We recommend that you add this address to your email contacts otherwise
the response may be treated as Spam or Junk mail.  
 
Should you have any further queries in connection with this request do
please contact us.
 
[2]http://www.gov.uk/dwp
 
 

show quoted sections

References

Visible links
1. mailto:[email address]
2. http://www.gov.uk/dwp

S. Gwilliam left an annotation ()

A minor correction,
The line that reads "In particular it would mean that if LCWRA is awarded then it should be backdated to the start of the 3rd month following the month in which medical evidence was first provided."
should of course say ".... to the end of the 3rd month ....".

no-reply@dwp.ecase.co.uk on behalf of DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Dear S Gwilliam,

I am writing in response to your request for information, received 28th
November.

Yours sincerely,

DWP Central FoI Team

Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Repeat claims for LCW/LCWRA in Universal Credit.'.

Thank you for your initial reply, made within the 20 day deadline.

However I must now request an Internal Review as you have not supplied any of the information requested.
Of the information you did refer to:

1. Your first link is to the Decision Makers Guidance. The DMG is guidance for legacy benefits and has no relevance whatsoever to Universal Credit.
The correct guidance for Universal Credit, PIP and 'New Style' CB benefits is the 'Advice for Decision Makers'.
(That is even clearly stated on the webpage in your link).

Even if you had given the correct guidance your reply would not have been sufficient to satisfy the request .
ADM is a massive collection of guidance and I would not consider any particular section 'Reasonably Available' without further pointers, which is why I specifically requested -
"If referring to the ADM guidance then please provide the Volume, Chapter, and Paragraph number(s) for the particular guidance that applies".

2. Your second and third links appear to be government/MP's briefing documents - so not legislation or guidance at all.
They also both fail to make any mention of the issue of the 'Relevant Period' for payment/back-payment of LCW/LCWRA elements in UC.

3. You final link is to the Universal Credit Regulations 2103, regulation 41.
Regulation 41 is simply about whether a new WCA can be carried out and indeed is titled - "When an assessment may be carried out".
Whilst 41(2)(b) does state in what circumstances a WCA can be carried out following a previous FFW decision, none of that regulation considers the 'Relevant Period' from which any Limited Capability should be paid if/when a new WCA is allowed.

To sum up of the four 'Reasonably Accessible' sources that you give-
1. Your first source is entirely the wrong Guidance for Universal Credit
2. Your second and third appear not to be guidance at all but MPs briefing notes.
3. Your final reference does actually refer to the correct legislation but is to a regulation that has only tangential relevance to the subject of this request.

Not one of the sources given has relevance to the information requested.

(I'm having trouble deciding if this catalogue of errors is simply incompetence or a deliberate attempt to mislead).

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r...

Yours faithfully,
S. Gwilliam

DWP freedom-of-information-requests, Department for Work and Pensions

This is an automated confirmation that your request for information has
been accepted by the DWP FoI mailbox.
 
By the next working day your request will be forwarded to the relevant
information owner within the Department who will respond to you direct. 
 
If your email is a Freedom of Information request you can normally
expect a response within 20 working days.
 
Email FOI responses will be issued from [1][email address]
We recommend that you add this address to your email contacts otherwise
the response may be treated as Spam or Junk mail.  
 
Should you have any further queries in connection with this request do
please contact us.
 
[2]http://www.gov.uk/dwp
 
 

show quoted sections

References

Visible links
1. mailto:[email address]
2. http://www.gov.uk/dwp

no-reply@dwp.ecase.co.uk on behalf of DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Dear S Gwilliam,

I am writing in response to your request for information, received 16th
December.

Yours sincerely,

DWP Central FoI Team

S. Gwilliam left an annotation ()

The latest reply (and information from elsewhere) confirms what was suspected.

In cases where a claimant has been previously been found Fit-for-Work the DWP are not following legislation on the Relevant Period for Limited Capability in UC.
In such cases they are starting the relevant period only when they issue a UC50, and not when the claimant provides medical evidence of limited capability as stated in the legislation.

There is no provision in the UC legislation for starting the relevant period only when they issue a UC50, the relevant period is only/always linked to when evidence of Limited Capability is first provided.
There is nothing in the legislaton that states this must be evidence of a new or worsened medical condition, that conditionality only applies to whether to refer for assessment or not, accordingly once they do refer then the relevant period starts when ME was first provided.
Whilst this may be an oversight the UC legislation as written stands until revised, ammended, or modified by case law.

The case that prompted this FoI has now been through MR (decision to refuse to backpay LCWRA upheld) and the MR decision letter clearly states that the DWP have (incorrectly) used the 2013 New Style ESA regulations to make this UC decision.
That case is now going to the appeal tribunal.